Stambolziovski v Nestorovic (No 3)

District Court

New South Wales

Medium Neutral Citation:	Stambolziovski v Nestorovic (No 3) [2014] NSWDC 346
Hearing dates:	4 December 2014
Date of orders:	04 December 2014
Decision date:	04 December 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Dismiss the application for indemnity costs and I confirm the costs orders made on 30 September 2014. (2)   Order that there be no order in respect of the costs of today with the intent that these costs do not fall within the terms of the costs ordered on 30 September 2014 but that each party bear their own costs of today.
Catchwords:	COSTS – application for indemnity costs order – based on offer of compromise – offer for judgment for defendant with each party to pay its own costs – whether unreasonable for offer to be rejected – whether a genuine compromise – multiple claims pleaded – offer to one of two defendants
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 1.11, r 20.26, r 42.1, r 42.7, r 42.15A
Cases Cited:	Simmons v Rockdale City Council (No 2) [2014] NSWSC 1275 Stambolziovski v Nestorovic (No 2) [2014] NSWDC 292
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Costs
Parties:	Blaga Stambolziovski (plaintiff) Lilly Nestorovic (first defendant/cross-claimant to second cross-claim) Camanaro Prestige Properties Pty Limited ACN 101 515 744 t/as Sydneyhome Real Estate Ramsgate Beach (second defendant) Sasha Stambolziovski (cross-defendant to second cross-claim)
Representation:	Counsel: Mr Tzatzagos (plaintiff)   Solicitors: Brydens Compensation Lawyers (plaintiff) Gadens Lawyers (first defendant/cross-claimant to second cross-claim)
File Number(s):	2011/401832
Publication restriction:	None

Judgment

1. On 30 September 2014 I gave judgment in favour of the defendants in proceedings commenced by Mrs Blaga Stambolziovski (see Stambolziovski v Nestorovic (No 2) [2014] NSWDC 292), and made orders for the defendants’ costs to be paid by Mrs Stambolziovski. Order (5), made on that day, was in the following terms:

“(5) I defer entry of any order in respect of costs for 14 days and thereafter until further order in the event that any party seeks to argue that a different costs order should be made.”

2. The first defendant, Lilly Nestorovic, made an application for a special costs order relying upon an offer of compromise dated 29 November 2013 which was the subject of further correspondence on 9 April 2014 remaking that same offer.  The offer of compromise dated 29 November 2013 was in the following terms:

"Defendant's offer of compromise in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW), the first defendant makes an offer to compromise the plaintiff's claim in this proceeding on the following terms:

1.  Judgment for the first defendant.

2.  Each party to pay its own costs.

This offer remains open for acceptance for 28 days from the date of this offer of compromise."

3. The covering letter of that offer stated:

"We enclose by way of service an offer of compromise.  The offer is made without prejudice except as to costs and interest.

The offer remains open for 28 days…